Patna High Court
Rajeev Singh @ Rajeev Kumar vs State Of Bihar on 2 March, 2017
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh, Aditya Kumar Trivedi
Patna High Court CR. APP (DB) No.1310 of 2010 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.1310 of 2010
(Against the judgment of Conviction, dated 1.10.2010 and order of
Sentence, dated 6.10.2010 passed by Shri Mohan Prasad, Additional
Sessions Judge II, Vaishali at Hajipur in Sessions Trial No. 509 of 2003,
arising out of Vaishali P.S. Case No. 71 of 2002)
===========================================================
Rajeev Singh @ Rajeev Kumar, son of Sri Hanuman Singh, resident of
Village- Nagwan, Police Station- Belsar, O.P. Vaishali, District- Vaishali
.. .... Appellant
Versus
The State of Bihar. .... .... Respondent
====================================================
Appearance :
For the Appellant :Mr. Kanhaiya Prasad Singh, Senior Advocate
Mr. Alok Kumar, Advocate
Dr. Rajesh Kumar Singh, Advocate
Mr. Birendra Kumar Singh, Advocate
For the State : Mr. Ashwani Kumar Sinha, A.P.P.
=================================================================
CORAM:
HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH
HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP
SINGH)
Date: 02-03-2017
The appeal is directed against the judgment of
conviction, dated 1.10.2010 and order of sentence, dated
6.10.2010, passed by the Additional Sessions Judge II, Vaishali, in Sessions Trial No. 509 of 2003, whereby, while acquitting the two other co-accused, namely, Hanuman Singh and Sanjeev Singh, the Trial Court convicted the appellant, Rajeev Singh, under Sections 304-B read with Section 34 of the Indian Penal Code and Patna High Court CR. APP (DB) No.1310 of 2010 2 sentenced him to imprisonment for life.
2. The prosecution‟s case, as set out in the fardbeyan of Raj Ballav Singh, son of late Ram Chandra Singh of village Madarna, P.S. Vaishali, District Vaishali recorded by Sub Inspector, Shri Anuj Singh of Belsar O.P., P.S. Vaishali at 11:15 hrs., on 13.05.2002 at Belsar O.P., in short, is as follows:
The informant Raj Ballav Singh stated that a year ago, he married his daughter Veena Devi to the accused Rajiv Kumar son of Hanuman Singh of Village Nagwa, P.S. Vaishali (Belsar O.P.).
In the marriage, he gave goods and gifts to the best of his capability. However, the accused Rajiv Kumar and his father (Hanuman Singh) also demanded a Rajdoot motor cycle on the day of the marriage. The informant assured to give motor cycle, as soon as his financial position improves. After some time, the informant brought her daughter from her sasural, who disclosed that her husband, father-in-law (Hanuman Singh) and brother-in-
law (Sanjeev Kumar) have been torturing her for non-fulfillment of demand of motor cycle. The informant‟s daughter remained at her paternal house for some time. Later, her husband came and on his insistence, Veena Devi was sent to her sasural with him. Just after a few days, the informant‟s daughter sent a message complaining of assault again by her husband and others for non-Patna High Court CR. APP (DB) No.1310 of 2010 3
fulfillment of demand of motor cycle. They had also threatened to do away with her life. Her husband, in particular, has been threatening that he would burn her to death and nothing would happen to them. The informant along with other villagers came to his daughter‟s sasural and informed the local Mukhiya of the torture being meted to her daughter. The informant also met the accused and pleaded not to assault her for non-fulfillment of demand of dowry. For some time, the accused did not misbehave with his daughter. On 13.5.2002, the informant learnt from some villagers of Nagma that on the same day at about 7 A.M., the three accused assaulted her, sprinkled kerosene oil and set her body to fire, with an intention to kill.. The informant claims that the accused persons tortured and killed her daughter by burning her, for non-fulfillment of demand of motor cycle.
The Balsar O.P. forwarded the fardbeyan to Officer-
Incharge Vaishali P.S. for registration of a regular case.
On the basis of the fardbeyan of the informant, Vaishali (Belsar O.P.) P.S. Case No.7 of 2002, dated 30.5.2002, was registered under sections 304B and 34 of the Indian Penal Code. The police after investigation submitted charge sheet under section 304B/34 of the Indian Penal Code in the court of the Chief Judicial Magistrate, Vaishali at Hajipur, which took cognizance of offence Patna High Court CR. APP (DB) No.1310 of 2010 4 on 23.11.2002 and committed the case to the Court of sessions on 15.9.2003 for trial. Charges were framed under section 304B//34 of the Indian Penal Code to which the accused pleaded not guilty and claimed to be tried.
3. The prosecution in support of its case, examined altogether 20 witnesses, namely, Nathuni Ram as P.W.1, Nagina Singh as P.W.2, Chandrika Mahto as P.W.3, Md. Hussain as P.W. 4, Ram Nath Chaudhary as P.W.5, Binda Singh as P.W.6, Surajdeo Singh as P.W.7, Smt. Gangia Devi as P.W.8, Devendra Paswan as P.W.9, Satish Kumar as P.W.10, Umesh Prasad as P.W. 11, Sanjeev Kuamr as P.W. 12, Kamalesh Kumar @ Laddu Kumar as P.W. 13, Shankar Singh as P.W. 14, Ram Swaroop Singh as P.W. 15, Shankar Mohan Sinigh as P.W. 16, Rajan Prasad as P.W. 17, Pramod Kumar Singh as P.W. 18 and Raj Ballam Singh as P.W. 19 and Sanjay Kumar Devbrat as P.W. 20.
4. In addition to oral evidence, the prosecution also adduced some documentary evidence, some of which are as follows:
(i) Signatures of the informant Raj Ballav Singh and others on fardbeyan (Ext.1, 1/1 and 1/2);
(ii) Fardbeyan of the informant Raj Ballav Singh (Ext.2);
(iii) Forwarding endorsement on fardbeyan (Ext.3);Patna High Court CR. APP (DB) No.1310 of 2010 5
(iv) Information regarding registration of case of on the basis of fardbeyan (Ext.3/1).
5. The defence too has adduced oral and documentary evidence. It examined altogether five witnesses, namely, Pramod Kumar as D.W.1, Sanjay Kumar Ram as D.W.2, Ramesh Kumar Sinha as D.W.3, Sunil Kumar Verma as D.W.4 and Uday Singh as D.W.5. Besides the oral evidence, the defence also adduced documentary evidence, which are as follows:
Ext.A- Cash memo dated 20.7.2000 issued by Rajeev Kamal Agency regarding purchase of motor cycle.
Ext.B- Signature of accused Hanuman Singh on petition addressed to the then P.M. of India Ext-B/1: Signature of Shri Uday Pratap Singh, D.M. Vaishali
6. The defence of the accused in their statements under section 313 Cr.P.C. was complete denial of the prosecution case and it is their specific case that she committed suicide.
7. The trial court on consideration of materials on record acquitted accused Hanuman Singh (father-in-law) and Sanjeev Kumar (brother-in-law) accepting their defence that they were at Muzaffarpur and not at the place of occurrence at the time she was burnt, while convicting the appellant Rajeev Singh under section 304B/34 of the Indian Penal Code and sentencing him to under go life imprisonment.
Patna High Court CR. APP (DB) No.1310 of 2010 6
8. Mr. Kanhaiya Prasad Singh, learned Senior Counsel assailing the impugned judgment of conviction made the following submissions; (i) there were similar allegations against all the three accused, namely, the appellant, his father and his brother of having perpetrated torture for non-fulfillment of demand of dowry. But surprisingly, on the same evidence, the learned Trial Court convicted the appellant while acquitting the other two co-accused.
(ii) The cause of death of the deceased is not established as the Doctor who conducted the post mortem has not been examined, rather the post mortem report has been exhibited by a Pharmacist, who expressed his helplessness in explaining the niceties of the report. The post mortem report is not a substantive piece of evidence and as such it was imperative that either the author of the report should have proved the same or some other Doctor conversant with his handwriting and signature and also at the same time competent to explain its contents. In support of his submissions, learned counsel has relied upon case of (i)Sallo Singh & Ors vs State of Bihar, reported in 2007(1) BBCJ 368,
(ii) Sowam Kisku & Ors vs. State of Bihar (now Jharkhand), reported in 2006 Cr.L.J. 2526, (iii) Vijender vs. State of Delhi reported in (1997) 6 SCC 171 and (iv)P.C. Poulose vs State of Kerala, reported in 1996 Cr.L.J. 203.
Patna High Court CR. APP (DB) No.1310 of 2010 7
(iii) Before holding a person guilty of offence under section 304-B of the Indian Penal Code, a Court has to come to a definite finding about the cause of the death, which is missing in this case, on account of non-examination of the Doctor. As such, the obligation on the part of the husband and other inmates of explaining the death in the house of having special knowledge, in terms of Section 106 of the Evidence Act would come into play, only when the prosecution is able to satisfy the ingredients necessary for holding one guilty under section 304-B of the Indian Penal Code. If the ingredients of the offence under Section 304B is not established by the prosecution by cogent, legal and reliable evidence, there cannot be any legal presumption as to dowry death under section 113B of the Evidence Act against the appellant, necessitating any rebuttal by him or her;
(iv) On merit also, the case is weak as 13 out of 20 witnesses namely P.W.1 to P.W. 4, P.W.6 to P.W.11, P.W. 13, P.W.17 and P.W.18 have not supported the prosecution case and were declared hostile. Besides this, P.W. 5 is hear say witness and had no personal knowledge about the circumstances leading to the death of the deceased. His evidence is based on information supplied by the informant P.W. 19. The other witness namely P.W. 16, in fact, has supported the defence case that there was no demand of dowry Patna High Court CR. APP (DB) No.1310 of 2010 8 and relation between the victim and her husband was good and cordial and that the two of the accused namely Hanuman Singh (father-in-law) and Sanjiv Singh (brother-in-law) were at Muzaffarpur. He has not stated that there was any demand for dowry or that the accused tortured her in any manner much less for dowry. P.W. 20 is a Pharmacist in Sadar Hospital who had proved the post mortem report (Ext.4). According to learned counsel for the appellant, the prosecution case is based on the evidence of P.W. 12 Sanjeev Kumar, P.W. 14 Shankar Singh and P.W. 15, a local villager, as well as the informant (P.W.19), all of whom have admitted of having not seen the occurrence.
(v) He next submits that the prosecution has tried to develop the case during the trial and non-examination of Investigating Officer has prejudiced the defence case.
9. Alternatively, learned counsel for the defence also made submissions on the point of sentence, if otherwise; the Court otherwise was not satisfied on merit. It was submitted that the appellant is in custody for eight years and no one has seen the actual occurrence. He has faced rigors of prosecution for last 12 to 14 years and as such the sentence be reduced to period already undergone.
10. Conversely, learned counsel for the State has justified the Patna High Court CR. APP (DB) No.1310 of 2010 9 conviction and sentence passed against the appellant. He submits that the informant has fully supported the prosecution case and there are sufficient materials on record to substantiate the charge that the deceased soon before her death was tortured for dowry.
11. Learned counsel for the State next submits that in a case of dowry death which generally occurs in the house of in-laws, there cannot be possibly any eye witness from the side of the prosecution. The probable eye witness would be either the husband of the deceased or his family members, or the neighbours in some isolatory cases. In such circumstances, the prosecution can gather information from the villagers and past versions of the victim and can draw necessary inference from such circumstances. However, he fairly submits that the correctness of such information can be tested and will depend upon the persons giving such information.
12. We have heard learned counsel for the parties and perused the materials on record. Before, we consider the prosecution case as well as the defence case, it would be desirable to extract the relevant provisions of Section 304B which relates to dowry death. Section 304(b) is quoted herein below for easy reference:
"304B. Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to Patna High Court CR. APP (DB) No.1310 of 2010 10 cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called „dowry death‟, and such husband or relative shall be deemed to have caused her death.
Explanation.- For the purpose of this sub-section, „dowry‟ shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961) (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life".
The above provision was inserted by Act 43 of 1986 and came into force with effect from 19.11.1986. There is no dispute about the applicability of the above provision since the marriage and the death occurred in the year 2001 and 2002 respectively.
13. It is thus evident that in order to convict the accused for offence punishable under Section 304B IPC, the following essentials must be satisfied:
(i) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) such death must have occurred within seven years of her marriage.
(iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relatives of her husband;
(iv) such cruelty or harassment must be for, or in connection with, demand for dowry.
When the above ingredients are established by reliable and Patna High Court CR. APP (DB) No.1310 of 2010 11 acceptable evidence, such death shall be called dowry death and such husband or his relatives shall be deemed to have caused her dowry-death. If the abovementioned ingredients are attracted in view of the special provision, the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. However, it is open to the accused to adduce such evidence for disproving such judicial presumption as the burden is unmistakably on him to do so and he can discharge such burden by getting an answer through cross-examination of the prosecution witnesses or by adducing evidence on the defence side.
14. If the prosecution establishes by reliable and acceptable evidence the above ingredients, the same would constitute dowry death and as such the husband or his relative shall be deemed to have caused the dowry-death unless rebutted by cogent evidence. The Hon‟ble Apex Court in the case of Maya Devi vs State of Haryana, reported in 2016 Cr.LJ 629, at paragraph 16 observed that if the above mentioned ingredients in the provision are attracted, the Court shall presume and shall record such fact as proved unless and until it is disproved by the accused. However, the accused will be at liberty to adduce evidence for disproving such conclusive presumption as the burden or onus is now on him to do so and he can discharge such burden by getting an answer Patna High Court CR. APP (DB) No.1310 of 2010 12 through cross-examination of prosecution witnesses or by adducing the evidence on the defence side in order to escape the rigors of the provisions, otherwise, the presumption of guilt under section 113(B) of the Indian Evidence Act would be the logical fall out. Section 113(B) of the Indian Evidence Act is quoted herein below for easy reference:
"113B. Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death".
Explanation.- For the purposes of this section, „dowry death‟ shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)."
15. It thus follows from the provisions that if it is shown that soon before the death, the woman has been subjected to cruelty or harassment in connection with, demand for dowry, the court shall presume that the person had caused the dowry death. It will be then open for such person who is shown to have committed the dowry death to disprove the same by logical evidence or by cross- Patna High Court CR. APP (DB) No.1310 of 2010 13 examination of the prosecution witness. Paragraph 16 of the judgment in the case of Maya Devi (supra) is quoted hereinbelow:
"16. To attract the provisions of Section 304B, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty or harassment "for, or in connection with the demand for dowry". The expression "soon before her death" used in Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. In fact, learned senior counsel appearing for the appellants submitted that there is no proximity for the alleged demand of dowry and harassment. With regard to the said claim, we shall advert to while considering the evidence led in by the prosecution. Though the language used is "soon before her death", no definite period has been enacted and the expression "soon before her death"
has not been defined in both the enactments. Accordingly, the determination of the period which can come within the term "soon before her death" is to be determined by the courts, depending upon the facts and circumstances of each case. However, the said expression would normally imply that the internal should not be much between the cruelty or harassment concerned and the death in question. In other words, there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."
16. In light of the provisions of dowry death and the law laid down by the Hon‟ble Apex Court, we would examine whether the prosecution has established the case of dowry death against the accused persons. As noticed in the earlier paragraphs, the prosecution in order to establish its case, examined as many as 20 Patna High Court CR. APP (DB) No.1310 of 2010 14 witnesses, out of which P.W. 1 to P.W.4, P.W. 6 to P.W. 11, P.W. 13, P.W. 17 and P.W. 18 have not supported the prosecution case. However, the prosecution case hinges on the evidence of P.W. 5 Ram Nath Choudhary, P.W. 12 Sanjeev Kumar, P.W. 14 Shankar Singh, P.W. 15 Ram Swaroop Singh, P.W. 16 Shankar Mohan Singh and P.W. 19 Raj Ballabh Singh. Out of these six witnesses, P.W. 5 Ram Nath Choudhary is hear-say and had no personal knowledge of his own and had learnt about the torture meted to victim for non-fulfillment of dowry from others. His evidence is on the point that the deceased was married in the year 2001 and died in 2002 because of burn injury. He has further stated that he saw the victim lying dead in the house of the deceased, and all the family members were absconding.
17. P.W. 12 Sanjeev Kumar is the uncle of the deceased. He stated that the deceased was married to the appellant Rajeev Kumar, a year before her death. After marriage, her husband, father-in-law and brother-in-law tortured her for non-fulfillment of demand of dowry, which she duly communicated to him and her father. In May, 2002 he went to her Sasural, where while weeping her niece narrated the story of torture for non-fulfillment of dowry demand. On hearing the news of murder of her niece, he went to her sasural, where he found her burnt and dead. He claims to Patna High Court CR. APP (DB) No.1310 of 2010 15 recognize the accused.
18. P.W. 14 is a co-villager of the appellant as well as uncle of the deceased. He stated that at about 8.30 PM on 11.5.2002, Veena Devi was wailing and running towards the house of Uday Singh. On hearing her cry, he too moved towards the house of Uday Singh. He found kerosene oil sprinkled on the body of Veena Singh. On query, she stated that her husband Rajiv Kumar had poured oil on her body with intent to burn her. Per contra, the appellant stated that she had herself sprinkled kerosene oil on her body. This witness intervened and sent them back after settling the dispute. The following day at 8 AM, he learnt that the girl had died on account of burn injury. He further stated that Veena Devi was married in the year 2001.
19. P.W. 15 is a local villager. He stated that Veena Devi was married to Rajeev Kumar in the year 2001 and the occurrence took place about 7 years ago from the date of recording his evidence on 15.5.2009. He stated that he has come to learn about the cruelty and harassment meted to Veena Devi, for non-fulfillment of demand of motor cycle. He also stated that on hearing the news of murder of Veena Devi, he went to her sasural, where he saw her lying dead, having sustained burn injury on her person.
20. P.W. 16 Shankar Mohan Singh stated that on 13.5.2002, he Patna High Court CR. APP (DB) No.1310 of 2010 16 learnt that the daughter-in-law of Hanuman Singh died on account of burn injury. He recognized Hanuman Singh who was present in the dock. He stated that till the morning of 8 AM on 13.5.2002, the other two accused who have been convicted were in their house at Muzaffarpur. It is relevant to state herein that on the basis of evidence of this witness and exhibits A, B and C, the Trial Court acquitted the above two accused of the charge under section 304(B)/34 of the Indian Penal Code.
21. P.W. 19 Raj Ballav Singh is the informant himself. In his evidence, he has reiterated the prosecution case. He stated that his daughter was married in the year 2001 to Rajeev Singh. After marriage, her husband (appellant), her father-in-law (Hanuman Singh) and brother-in-law Sanjeev Singh used to assault her for dowry. He stated that he got message from her daughter that she was subjected to torture and assaulted for non-fulfillment of demand of motor cycle. She further intimated that her husband threatened her with life. In endeavour to try a settlement, he approached the local Mukhiya and also besieged the accused persons not to torture her daughter for dowry. He assured them that as and when he would be capable, he would meet the demand. He stated that in the morning of 13.5.2002, he got information that her daughter was murdered by setting fire after pouring kerosene Patna High Court CR. APP (DB) No.1310 of 2010 17 oil over her. On hearing the news, he went to her daughter‟s sasural along with others, where he found her dead on account of burn injury on her person.
22. P.W. 20 is a Pharmacist who has proved the signature and handwriting of the Doctor on the post mortem report which has been marked as Ext.4.
23. Having noticed the prosecution evidence in brief, we would now examine whether the prosecution has been able to establish that Veena Devi died other than in normal condition within 7 years of her marriage and that soon before her death, she was subjected to cruelty and harassment by her husband or any relative of her husband in connection with demand for dowry.
24. First of all, we would take up the issue whether the prosecution has been able to establish that the deceased died within 7 years of her marriage and not under normal condition. The issue is not difficult to determine, because of the own admission of the accused in their statement under section 313 Cr.P.C., that the victim was married in the year 2001. Further more, it is the case of the defence that the deceased committed suicide and burnt herself by sprinkling kerosene oil on her person. The defence vide paragraph 10 made specific suggestion to P.W. 19 that the deceased died by committing suicide by burning Patna High Court CR. APP (DB) No.1310 of 2010 18 herself. This apart, the informant P.W. 19, P.W. 5 and P.W. 12 have stated that Veena Devi was married in the year 2001 to Rajeev Kumar. She died on account of burn injury in May, 2002. P.W. 14 also stated in paragraph 3 of his deposition that Veena Devi was married in the year 2001 and died on account of burn injury on 12.5.2002. The evidence of P.W. 15 is also to the same effect. All of them have stated that Veena Devi was burnt to death by Rajeev Kumar and others by pouring kerosene oil on her. On the basis of evidence so discussed, we conclude that the prosecution has been able to establish that Veena Devi died within seven years of her marriage in unnatural condition.
25. Now, we would examine the other ingredients necessary for establishing a case under section 304B:-
"Whether Veena Devi was subjected to cruelty and harassment for or in connection with dowry demand?
It is the case of the prosecution in the fardbeyan that Veena Devi was subjected to cruelty and harassment for non-
fulfillment of demand of motor cycle. The informant, P.W. 19, reiterated the said version in his evidence also. Veena Devi also sent message to the informant that the accused persons used to assault and threatened to kill her, if the demand of dowry is not fulfilled. P.W. 12 also stated that when she went to the Sasural of Patna High Court CR. APP (DB) No.1310 of 2010 19 Veena Devi, the latter stated that she was subjected to cruelty and harassment for dowry. P.W. 15 also stated that he learnt about the cruelty and harassment to Veena Devi from the informant.
26. Though the defence has cross-examined these witnesses at length has not been able to extract any material worth the name, to render their evidence unworthy of reliance.
27. We would now take up the last of the ingredients whether Veena Devi was tortured soon before her death.
The word "soon before her death" occurring in Section 304B of the Indian Penal Code as well as in Section 113B of the Indian Evidence Act, is in respect of proximity test. Though the law maker has not indicated any definite period nor the expression shown before it has been defined either in the Penal Code or in the Evidence Act, nonetheless there must not be much interval between the concerned cruelty and harassment and death in question. There must be proximate and live link between the two. If the cruelty alleged becomes stale being remote in time, it would be of no consequence as in all probability it would not effect the woman and not fall within the purview of expression „soon before‟ death.
28. The Hon‟ble Apex Court in the case of Baldev Singh vs State of Punjab, reported in A.I.R. 2009 SC 913, observed that Patna High Court CR. APP (DB) No.1310 of 2010 20 „soon before death‟ is a relative term and no strait-jacket formula can be laid down as to what would constitute the period which will be considered „soon before death‟ or the occurrence. Nonetheless, the expression „soon before‟ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. It would be apt to quote paragraph 13 of the judgment which reads as under:
"13. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the „death occurring otherwise than in normal circumstances‟. The expression „soon before‟ is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. „Soon before‟ is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that bring in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression „soon before her death‟ used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression „soon before‟ is not defined. A reference to expression „soon before‟ used in Section 114, Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods „soon after the theft, is Patna High Court CR. APP (DB) No.1310 of 2010 21 either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term „soon before‟ is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression „soon before‟ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence".
29. In the light of scope and ambit of the terms as explained by Hon‟ble Apex Court, we would examine whether the deceased was tortured soon before her death.
30. On the basis of evidence adduced, the prosecution submits that the deceased Veena Devi was subjected to cruelty and harassment for non-fulfillment of dowry demand which continued right from the date of marriage to the date of death by setting her to fire. The marriage of Veena Devi was performed in the month of May, 2001 and her death took place on 13.5.2002. P.W. 12 Sanjeev Kumar in paragraph 2 of his evidence stated that in the month of May, 2002, he had gone to matrimonial house of Veena Devi just before her death. On seeing him, she started weeping and stated that she had been assaulted and is being threatened to death by the accused persons for non-fulfillment of dowry. P.W. 14 Patna High Court CR. APP (DB) No.1310 of 2010 22 stated that at about 8.30 PM on 11.5.2002, when he went to the house of Uday Singh to see Veena Devi on hearing her cry, she stated that Rajeev Kumar had sprinkled kerosene oil with intent to burn her. The informant too had stated that soon before her death, when Veena Devi had come to his house and had complained about torture and assault meted to her by the appellant and others for non-fulfillment of demand of dowry. Soon thereafter, she was done to death by the accused persons. He further stated that earlier also Veena Devi had sent message that she is being tortured for non-fulfillment of demand of dowry by the appellant and others.
31. The defence once again has not been able to elicit any material contradictions to make their testimony unreliable. Situated thus, in backdrop of the discussions made above, we are of the considered view that the prosecution has been able to establish the necessary ingredients necessary to constitute commission of dowry death, namely, (i) She was done to death within seven years of her marriage other than in normal circumstances; (ii) soon before her death, she was subjected to cruelty and harassment for non-fulfillment of demand of dowry;
32. As per statutory compulsion, as the prosecution has established the constituents of dowry death required under Section 304B, the burden now shifts on the accused to disprove the same. Patna High Court CR. APP (DB) No.1310 of 2010 23
33. As noticed in the earlier paragraphs, the defence can rebut such presumption by producing cogent evidence or cross- examining the prosecution witnesses to render the prosecution evidence unreliable.
34. We have already held that the defence has not been able to discredit the prosecution version in the cross-examination. The prosecution at the best has been able to rebut the presence of two accused persons, namely, father-in-law and brother-in-law of the deceased, who accordingly, have been acquitted by the Trial Court. The appellant have failed to rebut the presumption of guilt as against him, either by way of cross-examination or by producing any evidence rendering him liable for conviction under the provision. It happens to be note worthy that though, while cross-examining P.W.19, at para-10, the defence has suggested them of suicide, but the appellant neither during course of his statement under section 313 Cr.P.C. pleaded nor examined any one on that very score, though other D.Ws have been examined on other score.
35. The argument of defence that as the Investigating Officer had not been examined, it cannot be said that the prosecution has been able to establish the place of occurrence beyond all reasonable doubt, is also bereft of merit. So far as this Patna High Court CR. APP (DB) No.1310 of 2010 24 issue is concerned, it is an admitted and proven fact that the death of the deceased had taken place in her matrimonial house, situated in village Nagma. The prosecution witnesses, namely P.W. 5, P.W. 12, P.W. 15, P.W. 16 and P.W. 19 have stated that the deceased was found burnt dead in her matrimonial house. Besides this, the defence has also not cross-examined the witnesses on the point that she was not found dead in her matrimonial house rather the plea of the defence during the trial was that the deceased committed suicide by burning herself. As such, we are of the considered view that non-examination of the Investigating Officer has not prejudiced the defence case, nor his non-examination would be a lacuna of much consequence as the place of occurrence is not in dispute.
36. The defence had also argued that the Doctor who conducted the post mortem report has not been examined and as such the cause of death is not established. Elaborating his submissions, learned counsel submits that the post mortem report is not a substantive piece of evidence and as such it was essential that the Doctor who had prepared it, ought to prove the same by being examined by the prosecution. The contents of the post mortem report particularly the cause of death would not go in evidence in absence of examination of its author. The post mortem Patna High Court CR. APP (DB) No.1310 of 2010 25 report which is proved not by the author of the document but by a person, who is merely conversant with hand writing and signature of the Doctor would not have any probative value, as he is not acquainted and well versed with the medical equipments or the niceties of the report. Learned counsel, however, submits that if the post mortem report is proved by someone, in case of death or non-availability of its author despite all efforts in terms of section 32 of Evidence Act, who is both familiar with the handwriting and signature, as well as competent enough to explain the niceties of the contents of the report in cross-examination, the same would have a probative value.
37. The moot question involved is as to what would be the effect or value of a post mortem report where the Doctor who conducted the post mortem, was not examined during trial.
38. There are two situations:
(i) One, where the prosecution has withheld the Doctor, and the post mortem report was exhibited formally by a person who is not acquainted with medical science; and
(ii) If the Doctor is dead or cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without a prolonged delay or much expense, which to Court may appear to be unreasonable in the circumstances of the Patna High Court CR. APP (DB) No.1310 of 2010 26 case and the post mortem report is exhibited by a person conversant with his signature and hand writing.
39. The determination of the issues would require noticing of Section 32(1) and (2) of the Evidence Act, which is quoted herein below for easy reference:
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant.- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases.-
(1) When it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, the cases in which the cause of that person‟s death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under exception of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question".
(2) or is made in course of business. --When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.
Patna High Court CR. APP (DB) No.1310 of 2010 27
40. In light of Section 32 of the Evidence Act and relevant laws on the issue, to which we will refer later in the judgment, we take up issue No.I first.
"What would be the effect or value of post mortem report or injury report where the Doctor who conducted the same was withheld and the report was exhibited by a person who is not acquainted with the medical science".
41. The issue came up for consideration as early as in the case of Hadi Kirsani v. State, reported in A.I.R. 1966 Orissa 21. The learned Judge observed that the post mortem report or injury report is not a substantive piece of evidence and the same would not be admissible unless and until the person who prepared the report is examined. However, if the Doctor is dead or is not available for examination in Court, under the circumstances as detailed in Section 32, the injuries report or post mortem report would be admissible or relevant.
42. Reiterating the same view, the Rajasthan High Court in the case of State of Rajasthan v. Mathura Lal Tara Chand, reported in 1971 Cr.L.J. 1816,. observed that if the medical officer is available for examination in Court and if he is not examined, the document is not admissible in evidence for the simple reason that such document can be made use of only for the purpose of Patna High Court CR. APP (DB) No.1310 of 2010 28 corroboration under Section 157 or refreshing his memory as laid down in Section 159 or for contradicting his statement as per Section 145 of the Evidence Act. However, learned Judge observed that if in any case the Doctor is dead or not available for examination in course of trial, then under the circumstances given in Section 32 of the Evidence Act, the medical certificate is admissible and relevant. What weight such a certificate would carry is altogether a different matter. Paragraph 6 of the judgment which is relevant in the context is quoted herein below:
"6. In the light of above discussion, the position of law is like this. If the medical officer is available for examination in Court and if he is not examined, the document is not admissible in evidence for the simple reason that such a document can be made use of only for the purpose of corroboration or contradiction or refreshing the memory. If in any case the doctor is dead or is not available for examination in the course of trial, then under the circumstances given in Section 32, Evidence Act, the medical certificate is admissible and relevant. What weight such a certificate would carry is altogether a different matter".
(underlining is mine for emphasis)
43. In the case of Vijender v. State of Delhi, reported in (1997) 6 SCC 171, a post mortem report was produced by the Clerk of the hospital though the Doctor was available. The Hon‟ble Apex Court observed that though the medical report was proved by a Clerk of the hospital, the same would not be admissible, as the Doctor who held the post mortem examination Patna High Court CR. APP (DB) No.1310 of 2010 29 was available in the hospital. However, in exceptional cases, where any of the prerequisites of Section 32 of the Evidence Act are fulfilled, the post mortem report can be admitted in evidence as the relevant fact in terms of sub-section (2) thereof, by proving the same through some other competent witness. It would be relevant to quote paragraph 19 of the judgment which reads as under:
"19. It passes our comprehension how the trial Judge entertained the post mortem report as a piece of a documentary evidence on the basis of the above testimony of a clerk in spite of legitimate objection raised by the defence. In view of Section 60 of the Evidence Act, referred to earlier, the prosecution is bound to lead the best evidence available to prove a certain fact; and in the instant case, needless to say, it was that of Dr. U.C. Gupta, who held the post mortem examination. It is of course true that in an exceptional case where any of the prerequisites of Section 32 of the Evidence Act is fulfilled a post mortem report can be admitted in evidence as a relevant fact under sub-section (2) thereof by proving the same through some other competent witness but this section had no manner of application here for the evidence of P.W. 21 clearly reveals that on the day he was deposing Dr Gupta was in that hospital. The other reason for which the trial Judge ought not to have allowed the prosecution to prove the post-mortem report is that it was not the original report but only a carbon copy thereof, and that too not certified. Under Section 64 of the Evidence Act document must be proved by primary evidence, that is to say, by producing the document itself except in the cases mentioned in Section 65 thereof. Since the copy of the post- mortem report did not come within the purview of any of the clauses of Section 65 it was not admissible on this score also".
(underlining is mine for emphasis) Patna High Court CR. APP (DB) No.1310 of 2010 30
44. In the case of Sowam Kisku & Ors v. The State of Bihar, reported in 2006 Cri. L.J.2526, the Jharkhand High Court noticed that the post mortem report was proved by a Compounder attached to the hospital. Declining such practice, the Jharkhand High Court observed that the contents of the post mortem report cannot be used by examining the compounder of the hospital, who had no knowledge about the opinion expressed by the Doctor. Further more, the post mortem report is not document which falls under section 293(4) Cr.P.C. nor the prosecution has taken recourse to Section 294 Cr.P.C. However, the Division bench of Jharkhand High Court observed that if any other Doctor had been examined who knew the signature of the Doctor who conducted autopsy, and who had given evidence as to the nature of post mortem done and the injuries found by the Doctor on the dead body, then in such circumstances the appellants would have had an opportunity to cross-examine the said Doctor to profess their case that injury suffered was not fatal in nature or that the said injuries are not sufficient in the ordinary course of nature to cause the death of the deceased or that the said injuries are likely to cause death. The prosecution by not examining the Doctor in fact had denied the opportunity to the accused appellant as they were prevented from cross-examining the competent person, who would be well Patna High Court CR. APP (DB) No.1310 of 2010 31 equipped in medical science. It would be apt to quote paragraphs 8 and 9 of the judgment are quoted herein below:
"8. We are unable to understand as to why the prosecution did not choose to examine the doctor. It is no doubt true that in spite of the steps taken, the prosecution could not procure the attendance of the doctor who conducted autopsy over the dead body, but that could not have precluded the prosecution from examining some other doctor from the same hospital who knew the handwriting and signature of the doctor who conducted autopsy. If any other doctor had been examined who knew the signature of the doctor who conducted the autopsy and if he had given evidence as to the nature of post mortem done and the injuries found by the doctor on the dead body, then the appellants could have had an opportunity of cross-examining the said doctor to say that the injuries suffered by the deceased are not fatal in nature and even if the deceased died on account of such injuries, the accused-appellants could have taken a defence to say that the said injuries are not sufficient in the ordinary course of nature to cause the death of the deceased or that the said injuries are only likely to cause the death. The prosecution by not examining the doctor denied the opportunity to the accused-appellants as they were prevented from cross-examining the doctor. Therefore, in absence of any evidence that Dugu Ram Kisku died due to homicidal violence, we cannot find the appellants guilty of murder.
(underlining is mine for emphasis)
9. A perusal of Section 60 of the Evidence Act shows that in all cases wherever it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on this ground and the prosecution having not examined the doctor and not giving an opportunity to the accused to cross- examine him, cannot reply upon the evidence of P.W.11 and mark Ext.5, the post mortem certificate through him. It is needless to mention Patna High Court CR. APP (DB) No.1310 of 2010 32 that the doctor who conducted autopsy and expressed opinion in the post mortem certificate, was not examined and therefore the compounder, P.W.11, is not a competent witness to speak about the cause of death; more so when he has admitted in his cross-examination that he was not present at the time of post mortem and that he also did not know about the opinion expressed by the doctor who conducted autopsy. At this stage we wish to make an useful reference to Section293, Cr.P.C. which contemplates that any document purporting to be a report under the hand of a Government Scientific Expert to whom the Section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding, may be used as evidence in any inquiry, trial or other proceeding. Sub-section (4) of Section 293 classified the reports of the Scientific Experts. Post-mortem report is not one of those documents which falls under sub-section section (4) of Section 293, Cr.P.C.
45. In the case of Malay Kumar Ganguly v. Sukumar Mukherjee & Ors, reported in A.I.R. 2010 SC 1162, the Hon‟ble Apex Court observed that ordinarily, if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. Such document is inadmissible in evidence and the contents thereof cannot be held to have been proved unless he is examined. Clarifying the law, the Hon‟ble Apex Court observed that the document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof Patna High Court CR. APP (DB) No.1310 of 2010 33 was taken. In a criminal case, the right of the accused subject to shifting of burden depending upon the statutes is protected under Article 21 of the Constitution of India. It would be relevant to quote paragraphs 48 and 29 of the judgment, which reads as under:
"48. It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross-exami9nati8on in a court of law.
49. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken. In a criminal case, subject of course, to the shifting of burden depending upon the statutes and/or the decisions of the superior courts, the right of an accused is protected in terms of Article 21 of the Constitution of India. The procedure laid in that behalf, therefore, must be strictly complied with. Exhibits 4, 5 and 6, in our opinion, are not admissible in evidence in the criminal trial".
46. On consideration of provisions of law, particularly section 32 of the Evidence Act and conspectus of the decisions on the issue, we hold (a) where the prosecution has withheld the doctor and the injury report or post mortem report was exhibited formally by a person who is not acquainted with the medical science, the same would be inadmissible in evidence as the Patna High Court CR. APP (DB) No.1310 of 2010 34 contents of the report would not stand proved. We, accordingly, answer issue No.(i) in the aforesaid term.
(b) Further more, where the doctor is dead or cannot be found or who has become incapable of giving evidence or his attendance cannot be procured with a prolong delay or much expense which to the Court may appear unreasonable in the circumstances of the case, the same would become admissible in evidence in terms of section 32 of the Evidence Act, if it is proved by a person conversant with his handwriting and signature. However, what would be the probative value of such evidence would depend on case to case. We answer the issue No.2 accordingly.
47. As such, a larger question arise as to what would be the probative value or relevance of such evidence which is proved in terms of Section 32 of the Evidence Act by a person who is not well equipped in medical science and is incompetent to answer any question, on the contents of the report.
48. The right and liberty of an individual, guaranteed under Article 21 of the Constitution of India, if any prejudice is caused to the accused in a criminal trial, the benefit will be given to him and not to the prosecution and that is why the Court observed as to what would be the probative value of the document which is Patna High Court CR. APP (DB) No.1310 of 2010 35 admissible under section 32 of the Evidence Act but proved by a person who is incompetent to understand the contents of the documents.
49. The Orissa High Court has raised the issue in the case of Hadi Kirsani vs State (supra) and the Rajasthan High Court in the case of Mathura Lal Tara Chand (supra). The Jharkhand High Court too observed in case of Sowam Kisku (supra) that in absence of the doctor, if any other doctor has been examined, who knew the signature of the doctor who conducted autopsy, and if he had given evidence as to the nature of post mortem done and the injury found by the doctor on the dead body, then the appellant could have had the opportunity to cross-examine the said doctor to opine, that the injuries suffered by the deceased are not fatal in nature or that even if the deceased died on account of such injury, the same was not sufficient in ordinary course to cause death of the deceased or that the said injury are likely to cause death.
50. In our considered view, the non-examination of a competent doctor, in absence of the doctor who authored the document, even if admissible under section 32 of the Evidence Act, so proved by a Compounder merely someone conversant with his handwriting, would virtually amounts to denial of an opportunity to the accused as they are prevented from cross- Patna High Court CR. APP (DB) No.1310 of 2010 36 examining the doctor who could have addressed the intricacies of the report, for no fault of their own. Being conscious of such situation, the Hon‟ble Apex Court in the case of Vijender (supra) held that in exceptional cases where any of the prerequisites of Section 32 of the Evidence Act are fulfilled, the post mortem report can be admitted in evidence as the relevant fact in sub- section (2) thereof by proving the same through some other competent witness which obviously is referred to a doctor with equipped in medical science to answer the question with respect to contents of the report. It also goes to show that even under section 32 of the Evidence Act, the post mortem report though admissible would be relevant when a competent witness come and depose about the same otherwise it will shake the very edifice of criminal jurisprudence that if any prejudice is caused, the benefit would be given to him and not to the prosecution.
51. We, accordingly, hold that if a post mortem report or injury report is proved by a witness in terms of any of the circumstances enumerated under section 32 of the Evidence Act, such evidence would be admissible in evidence. However, such evidence would not have any probative value unless and until the same is proved by any other doctor who is well equipped in medical science and competent to answer the question on the Patna High Court CR. APP (DB) No.1310 of 2010 37 merits of the report as the defence would be deprived of cross- examination on the contents of the report, which would be prejudicial to its interest. We answer this situation accordingly.
52. There is yet another aspect to the matter. If the accused is called upon to accept or deny a particular document and if he did not deny its genuineness, the said document can be admitted in evidence under section 294 of the Code of Criminal Procedure. Similarly, if the defence has not denied the cause of death and manner of death or about the injury inflicted to a person, under that circumstances it can be held that no prejudice has been caused to the accused if the post mortem report is admitted under section 32 of the Indian Evidence Act and thus it will be relevant fact for deciding the cause of death.
53. Having noticed the provisions of Section 32 and the law laid down by the Apex Court, we would now examine whether non-examination of the Doctor, who conducted the post mortem and prepared the report would be fatal. It is true that the post mortem report has been brought on record by a Pharmacist who had worked and was conversant with handwriting and signature of the Doctor. The Pharmacist (P.W. 20) in his evidence had stated that he has proved the post mortem report as the Doctor who had authored the same is presumably dead.
Patna High Court CR. APP (DB) No.1310 of 2010 38
54. In our considered view, the value and admissibility of post mortem report would be nugatory for two reasons; firstly, the prosecution itself is not very sure that whether Doctor is alive or dead and secondly, the P.W. 20 has admitted that he is unequipped to understand the intricacies of the report and as such his evidence would not be even admissible under section 32(2) of the Evidence Act.
55. In the instant case, however, the non-examination of the Doctor would not be very material as the death by burning is not disputed even by the defence. According to the defence, it is the victim who has burnt herself by sprinkling kerosene oil, whereas as per the prosecution, the appellant has had burnt her to death after pouring kerosene oil on her body. Thus, the death by burn injury is not in dispute and stands admitted. As such, the non- examination of the Doctor would not be fatal in the facts and circumstances of the case, as cause of death by burn injury is an admitted case. The view of ours, finds support from the decision rendered by the Hon‟ble Apex Court in the case of State of U.P. v. Lakhmi, reported in (1998) 4 SCC 336, wherein their Lordships have held that non-examination of the Doctor, who conducted the post mortem would not be fatal to the prosecution case, where the accused had admitted that the death of the deceased was a case of Patna High Court CR. APP (DB) No.1310 of 2010 39 homicide. Paragraph 15 of the judgment which is relevant in the context is quoted herein below:
"15. Learned counsel for the respondent, however, pointed out that as the doctor who conducted post- mortem examination on the dead body was not put in the witness-box in this case and it was argued on its strength that in the absence of legally proved medical evidence no finding can be reached that the deceased died due to blows inflicted with "phali". No reason is seen noted by the trial court or the High Court for the non-examination of the doctor who conducted the autopsy. No doubt it is the duty of the prosecution to prove post-mortem findings in murder cases, if they are available. Absence of such proof in the prosecution evidence in a murder case is a drawback for prosecution. However, we are not disposed to allow this case to be visited with fatal consequences on account of such a lapse because the accused has admitted that death of the deceased was a case of homicide."
56. We have already held that the prosecution has been able to establish its case with cogent evidence that the appellant caused dowry death of the deceased by burning her within seven years of her marriage for non-fulfillment of demand of dowry. The defence has miserably failed to rebut the presumption of dowry death against the appellant. Further more, though the defence had claimed that non-examination of the Investigating Officer had prejudiced the defence case but the later had utterly failed to demonstrate as to how the non-examination of the Investigating Officer had prejudiced the defence case. The defence has admitted Patna High Court CR. APP (DB) No.1310 of 2010 40 that the death of the deceased took place in the matrimonial house in village Nagma. The only dispute was with respect to whether the deceased set herself to fire or whether the appellant burnt her to death. The defence has not suggested or drawn the attention of the prosecution to any material contradiction which in absence of the Investigating Officer may prejudice its case. The Hon‟ble Apex Court in the case of Lahu Kamlakar Patil & anr. Vs. State of Maharashtra, reported in (2013) 6 SCC 417, observed that non-examination of the Investigating Officer is not fatal to the prosecution case, when no prejudice is likely to be suffered by the accused. Paragraph 18 of the judgment, which is relevant in the context, is quoted herein below:
"18. Keeping in view the aforesaid position of law, the testimony of P.W.1 has to be appreciated. He has admitted his signature in the FIR but has given the excuse that it was taken on a blank paper. The same could have been clarified by the investigating officer, but for some reason, the investigating officer has not been examined by the prosecution. It is an accepted principle that non-examination of the investigating officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar, this Court has stated that non-examination of the investigating officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar, it has been opined that when no material contradictions have been brought out, then non- examination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial Judge nor the High Court has delved into the issue Patna High Court CR. APP (DB) No.1310 of 2010 41 of non-examination of the investigating officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness has turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar, Rattanlal v. State of J&K and Ravishwar Manjhi v. State of Jharkhand, has explained certain circumstances where the examination of investigating officer becomes vital. We are disposed to think that the present case is one where the investigating officer should have been examined and his non-examination creates a lacuna in the case of the prosecution".
57. In the result, this appeal fails and the impugned judgment of conviction and sentence passed against the appellant is upheld. The appellant alternatively argued that he has remained in custody for more than 8 years and have faced the rigors of trial over 14 years and as such the sentence awarded against him should be reduced from life imprisonment to the period already under gone.
58. We are unable to subscribe to the submissions of learned counsel for the appellant even on point of sentence. The deceased has been done to death in a heinous manner by burning her, for non-fulfillment of dowry within seven years or so of her marriage. As such, this is not a fit case in which the sentence ought to be Patna High Court CR. APP (DB) No.1310 of 2010 42 reduced. As such, while upholding the conviction, we also uphold the sentence awarded against the appellant. Accordingly, instant appeal is dismissed. The appellant would remain in custody to serve out the remaining sentence.
(Samarendra Pratap Singh, J)
(Aditya Kumar Trivedi, J) I agree
(Aditya Kumar Trivedi, J)
Md.Jamaluddin Khan
AFR AFR
CAV DATE 30-11-2016
Uploading Date 02-03-2017
Transmission 03-03-2017
Date